Exhibit 10.27
FORM OF AMENDED AND RESTATED STOCK OPTION AGREEMENT
This Amended and Restated Stock Option Agreement (this "Agreement") is
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made and entered into as of August 4, 1997 ("Date of Grant"), by and between
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Metro-Xxxxxxx-Xxxxx Inc., a Delaware corporation formerly known as P&F
Acquisition Corp. (the "Company") and Celsus Financial Corp., a Delaware
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corporation ("Optionee"), and amends and supersedes that certain Stock Option
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Agreement, dated as of October 10, 1996, by and among the Company and the
Optionee (the "Original Stock Option Agreement").
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THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THAT ACT OR THE COMPANY SHALL HAVE RECEIVED AN OPINION OF
COUNSEL (WHICH COUNSEL AND OPINION SHALL BE SATISFACTORY TO THE COMPANY'S
COUNSEL) THAT REGISTRATION OF SUCH SECURITIES UNDER THAT ACT AND UNDER THE
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
WHEREAS, Optionee provided certain services in connection with the
formation of the Company and the acquisition by the Company of the outstanding
stock of Metro-Xxxxxxx-Xxxxx Studios Inc., a Delaware corporation formerly known
as Metro-Xxxxxxx-Xxxxx Inc. ("MGM Studios");
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WHEREAS, as consideration for such services, the Company granted to
Optionee, and desires to restate the grant to Optionee of, an option to purchase
shares of the Common Stock, par value $.01 per share, of the Company ("Common
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Shares");
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WHEREAS, the parties hereto have agreed to enter into this Agreement
for the purpose of amending and restating in its entirety the provisions of the
Original Stock Option Agreement as provided herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. Terms not otherwise defined elsewhere in
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this Agreement shall be as defined below:
1.1 "Investors Shareholder Agreement" means that certain Amended and
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Restated Investors Shareholder Agreement dated as of August 4, 1997, by and
among the Company, MGM Studios, Tracinda Corporation ("Tracinda"), Seven Network
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Limited ("Seven") and Xx. Xxxxx X. Xxxxxxx.
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2. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
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hereby grants to Optionee, and Optionee hereby accepts, as of the Date of Grant,
an option to purchase 3,750 Common Shares (the "Option") at a price per share
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equal to $267.00 (the "Exercise Price"),
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subject to adjustment as provided in Section 5 of this Agreement. The Option
shall expire at 5:00 p.m., Pacific Standard (or Daylight Savings, if applicable)
Time, on October 10, 2002 (the "Option Expiration Date"), and shall be subject
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to all of the terms and conditions set forth in this Agreement.
3. EXERCISABILITY OF OPTION. The Option shall become exercisable in
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whole or in part at any time on or after October 10, 1997.
4. EXERCISE OF OPTION. Optionee may exercise the Option by the
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delivery to the Company of a written notice of such exercise (the "Exercise
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Notice"), which Exercise Notice shall specify the number of Common Shares to be
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purchased pursuant to such Exercise Notice (the "Exercised Shares") and the
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aggregate Exercise Price for such Exercised Shares, together with payment in
full of such aggregate Exercise Price in cash or by check payable to the
Company.
5. ADJUSTMENTS. The number of Common Shares to be issued pursuant
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to the Option and the Exercise Price thereof shall be adjusted from time to time
as follows:
(a) If the Company shall at any time or from time to time declare or
pay a dividend, or make a distribution, on the outstanding Common Shares in
shares of capital stock of the Company or subdivide the outstanding Common
Shares into a greater number of Common Shares, or combine the outstanding
Common Shares into a smaller number of Common Shares, or issue by
reclassification of its Common Shares any shares of its capital stock,
then, in each such case:
(i) the number of Common Shares for which the Option is
exercisable shall be adjusted so that the Optionee shall be entitled
to receive, upon exercise thereof, the number of shares of capital
stock of the Company that the Optionee would have been entitled to
receive after the happening of any of the events described above had
the Option been exercised in full immediately prior to the happening
of such event or the record date thereof, whichever is earlier; and
(ii) an adjustment made pursuant to this Section 5(a)
shall become effective for purposes of subclause (i) of this Section
5(a), (A) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the
determination of holders of Common Shares entitled to receive such
dividend or distribution, or (B) in the case of any subdivision,
combination or reclassification, at the close of business on the day
upon which such corporate action becomes effective.
(b) If at any time or from time to time the Company shall declare,
order, pay or make, in respect of its capital stock, a dividend or other
distribution (including, without limitation, any cash dividend,
distribution of stock or other securities or property or rights, options or
warrants to subscribe for securities of the Company or any of its
subsidiaries, but excluding capital stock of the Company the issuance of
which is subject to Section 5(a)), then, and in each such case, the
Optionee shall be entitled to receive, upon the exercise thereof, for each
Common Share issuable upon the exercise thereof, such
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additional stock or other securities or property, cash, rights, options or
warrants to subscribe for securities of the Company or any of its
subsidiaries per Common Share as if such Common Share had been issued prior
to the record date for such dividend or distribution. An adjustment made
pursuant to this Section 5(b) shall become effective immediately after the
close of business on the record date fixed for the determination of
stockholders entitled to receive such dividend or distribution. The
provisions of this Section 5(b) shall not apply to payment of regular
quarterly cash dividends on Common Shares after October 1, 2001.
(c) In the event of any adjustment provided for in this Section 5 in
the number of Common Shares to be issued pursuant to the Option, the
Exercise Price payable upon exercise of the Option shall be adjusted such
that the adjustment to the Exercise Price payable upon the exercise of the
Option shall be inversely proportionate to the adjustment in the number of
Common Shares to be issued pursuant to the Option.
(d) The number of Common Shares into which the Option is exercisable
and the Exercise Price, in each case adjusted as herein provided, shall
remain in effect until further adjustment as required herein.
6. NOTICES. All notices and other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Company, to:
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Chief Executive and Financial Officers
If to Optionee, to:
Celsus Financial Corp.
c/o KPMG Peat Marwick
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxx
with a copy to:
Culmen Group, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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or at such other address as either shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
7. NONTRANSFERABILITY. Neither the Option nor any interest therein
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may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner.
8. STOCKHOLDER RIGHTS. Optionee shall not be entitled to vote,
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receive dividends or be deemed for any purpose the holder of any Common Shares
(or any other securities issuable upon the exercise of the Option) until the
Option shall have been duly exercised, either in whole or in part, to purchase
Common Shares in accordance with the provisions of this Agreement.
9. OTHER AGREEMENTS. Optionee and the Company hereby acknowledge
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that all Common Shares of the Company are subject to and entitled to the
benefits of (i) that certain Amended and Restated Shareholders Agreement dated
as of August 4, 1997 (the "Shareholders Agreement") by and among the Company,
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MGM Studios, Tracinda, Seven, Xx. Xxxxx X. Xxxxxxx and certain other persons and
(ii) the Investors Shareholder Agreement.
10. OPTION AND SHARES ISSUABLE UPON EXERCISE NOT REGISTERED.
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Optionee, by accepting the Option, acknowledges that the Option is not, and the
Common Shares and other securities issuable upon exercise thereof may not be,
registered under the Securities Act of 1933 (the "Securities Act"), and
represents that it has acquired the Option for its own account and not with a
present view to, or in connection with, any distribution thereof in violation of
the Securities Act. Unless and until registered under the Securities Act, each
stock certificate representing the Common Shares and other securities purchased
upon exercise of the Option shall be stamped or otherwise imprinted with the
following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY BE OFFERED OR SOLD ONLY IF
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THESE SHARES ARE SUBJECT TO CERTAIN
LIMITATIONS ON TRANSFER AND CERTAIN OTHER MATTERS SET FORTH IN AN
AGREEMENT DATED AS OF AUGUST 4, 1997 BY AND AMONG SEVEN NETWORK
LIMITED, TRACINDA CORPORATION, METRO-XXXXXXX-XXXXX STUDIOS INC.,
METRO-XXXXXXX-XXXXX INC., XX. XXXXX X. XXXXXXX, AND CERTAIN OTHER
PERSONS (THE "AGREEMENT"). A COPY OF THE AGREEMENT IS ON FILE WITH THE
SECRETARY OF METRO-XXXXXXX-XXXXX INC."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY BE OFFERED OR SOLD ONLY IF
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THESE SHARES ARE SUBJECT TO CERTAIN
LIMITATIONS ON SALE, TRANSFER OR OTHER DISPOSITION AND
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CERTAIN AGREEMENTS WITH RESPECT TO VOTING SET FORTH IN AN AMENDED AND
RESTATED INVESTORS SHAREHOLDER AGREEMENT DATED AS OF AUGUST 4, 1997 BY
AND AMONG SEVEN NETWORK LIMITED, TRACINDA CORPORATION, METRO-XXXXXXX-
XXXXX STUDIOS INC., METRO-XXXXXXX-XXXXX INC. AND XX. XXXXX X. XXXXXXX
(THE "AGREEMENT"). A COPY OF THE AGREEMENT IS ON FILE WITH THE
SECRETARY OF METRO-XXXXXXX-XXXXX INC.
11. GOVERNING LAW. This Agreement and the Option granted hereunder
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shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware.
12. EFFECTIVE DATE. This Agreement shall become effective at the
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time of the execution hereof.
13. TERMINATION OF ORIGINAL STOCK OPTION AGREEMENT. Optionee and the
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Company hereby mutually agree that, effective as of the execution hereof, the
Original Stock Option Agreement shall terminate and be of no further force or
effect, and neither of them shall have any further rights, duties or obligations
thereunder from and after the effective date of such termination. Until such
time as this Agreement is executed, the Original Stock Option Agreement shall
remain in full force and effect and shall be unaffected hereby.
IN WITNESS WHEREOF, the Company and Optionee have duly executed this
Agreement as of the Date of Grant.
METRO-XXXXXXX-XXXXX INC.
By: _____________________________
Title: _____________________________
CELSUS FINANCIAL CORP.
By: _____________________________
Title: _____________________________
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